Guardino

I join in most of the Chief Justice’s dissenting opinion. In my view, however, neither the dissent nor the majority has correctly interpreted our recent opinion in Rossi v. Brown (1995) 9 Cal.4th 688 [ 38 Cal.Rptr.2d 363 , 889 P.2d 557 ].

*270 I would hold Government Code section 53722 (hereafter Proposition 62) unconstitutional as an effort to evade the constitutional rule that “statutes providing for tax levies” are not subject to referendum. (Cal. Const., art. II, § 9, subd. (a).) Proposition 62 has the same effect as a referendum, in that every new tax within its terms must be approved by the voters before taking effect. The majority concludes the submission of a proposed tax statute to the voters pursuant to Proposition 62 does not literally constitute a “referendum” because the vote takes place before the proposed statute has been enacted. I do not disagree with the majority on this point of semantics. The point is irrelevant, however, if the issue is whether Proposition 62 has the effect of evading the constitutional ban on tax referenda.

The majority attempts to find support for its conclusion in Rossi v. Brown, supra, 9 Cal.4th 688. In my view the attempt fails. At…

A local agency proposed a sales tax to fund certain transportation projects, and the tax was approved by a majority but less than two-thirds *227 of the electors voting on it. The agency filed this original proceeding in the Court of Appeal for a writ of mandate to validate the tax, contending the tax does not violate either (1) the requirement of a two-thirds voter approval imposed by Government Code section 53722, a provision of Proposition 62, a statutory initiative adopted at the 1986 General Election, or (2) the requirement of a two-thirds voter approval imposed by section 4 of article XIII A of the California Constitution, a provision of Proposition 13, a constitutional initiative adopted at the 1978 Primary Election. In a divided opinion the Court of Appeal held the tax invalid under Proposition 13 and denied the writ. As will appear, we conclude that the tax is invalid under Proposition 62 and that the judgment of the Court of Appeal denying the writ should be affirmed on that ground.

Facts

In 1987 the Legislature enacted the Local Transportation Authority and Improvement Act (hereafter the Act). (Pub. Util. Code, §§ 180000-180264.) The Act declared that…

I respectfully dissent.

The majority in this case, and in another recent case (Rossi v. Brown (1995) 9 Cal.4th 688 [ 38 Cal.Rptr.2d 363 , 889 P.2d 557 ]), has seriously undermined the ability of local government to finance sorely needed projects and improvements through local tax measures. In the past, the constitutional prohibition against using the referendum process to annul “tax levies” (Cal. Const., art. II, § 9, subd. (a)) assured that a proposed new tax could not be *262 nullified by submitting the tax measure to the voters before it could take effect. In Rossi , however, this court allowed the opponents of a proposed San Francisco utility tax to annul the tax merely by labeling their petition an “initiative” rather than a “referendum,” on the questionable theory that the petition acted “prospectively” and did not affect current fiscal year financing. (Rossi v. Brown, supra, 9 Cal.4th at p. 711 ; see id. at pp. 730-735 (dis. opn. of Mosk, J.).)

The present case continues this court’s apparent trend of widely expanding the rights of local voters to reject proposed tax measures at the expense of local government, in contravention of the state Constitution. It is well…

Larry W. Kreig, Debra A. Greenfield, Orrick, Herrington & Sutcliffe, Mary A. Collins, Lynne T. Hirata, Robert K. Innes, Lempres & Wulfsberg, H. James Wulfsberg, Mark A. Stump, Hanson, Bridgett, Marcus, Vlahos & Rudy, David J. Miller, Ray E. McDevitt, Susan B. Laitin, Kennedy & Wasserman, R. Zachary Wasserman, Bertha A. Ontiveros, Francis F. Chin, Christopher M. Micheli, Lester W. Schiefelbein, John R. Masterman, Fred L. Main, D. Craig Nordlund, Denise LaChance, Peter M. Greenwald, Barbara Baird, Remcho, Johansen, & Purcell, Robin B. Johansen, Charles C. Marson and Wendy S. Strimling as Amici Curiae on behalf of Petitioner.

No appearance for Respondent.

Jonathan Mark Coupal, Timothy J. Morgan, Kaplanis & Grimm, Trevor A. Grimm, Bell & Hiltachk, Bell, McAndrews & Hiltachk and Thomas W. Hiltachk for Real Parties in Interest.

Ronald A. Zumbrun, Anthony T. Caso and Alan W. Foutz as Amici Curiae on behalf of Real Parties in Interest.

Steven N. Skolnik, City Attorney (Huntington Park and Santa Fe Springs), as Amicus Curiae.

OPINION

MOSK, J.

A local agency proposed a sales tax to fund certain transportation projects, and the tax was approved by a majority but less than two-thirds…